A Public Interest Litigation has been filed in the Delhi High Court asking the court to recognize same-sex marriage under the Hindu Marriage Act
More than two years after the Supreme Court decriminalised homosexuality in the country by abolishing Article 377, a PIL has been filed in the Delhi High Court asking the court to recognize same-sex marriages under the Hindu Marriage Act.
According to the details of the PIL filed on September 8, the petitioners have highlighted that Section 5 of the Hindu Marriage Act of 1956 does not distinguish between homosexual and heterosexual couples, asking the court to recognize same-sex couples under the said provisions of the Act. The petitioners have also argued that homosexual couples in India were being treated as ‘second-class citizens’ since they were not enjoying the same benefits enjoyed by the Heterosexual married couples.
Advocates Raghav Awasthi and Mukesh Sharma argued that there was no provision under the Hindu Marriage Act, 1956 that mandated that marriage should take place only between a Hindu man and a Hindu woman, adding that Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’.
“It is further submitted that despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in Delhi,” the plea said. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it added.
Pointing out that Right to Marry is a part of the Right to Life under Article 21 of The Constitution of India, the PIL argued that the prohibition of the marriage of LGBT people on the basis of sexual orientation and gender identity was ‘absolute discrimination towards them’. “That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity,” the plea said.
Representing the people of India solicitor general Tushar Mehta made a submission that marriage between same-sex couples is “not permissible”, under the Hindu marriage act. Mehta opposed the relief sought in the petition and said that “our laws, our legal system, our society and our values do not recognise a marriage, which is a sacrament, between same-sex couples”. He said that such marriages cannot be granted recognition for two reasons – firstly, the petition was asking the court to legislate and secondly, any relief granted “would run contrary to various statutory provisions”.
“Unless court does violence to various laws, this cannot be done,” he said.
Mehta also pointed out that such a law would bring difficulties for various provisions under the Hindu Marriage Act where the regulating marriages or prohibited relationships talk of husband and wife.
“Who would be assigned these roles where a same-sex couple was concerned?” Mehta asked.
The bench observed that over the world things are changing, but it may or may not be applicable to India.
It, however, questioned the need for a PIL in the instant case, saying the people who claim to be affected are well educated and can themselves approach the court.
The counsel for the petitioner stated that the affected people were not coming forward themselves as they feared reprisals and therefore, a PIL was preferred.
It asked the lawyer appearing for the petitioner, Abhijit Iyer Mitra, to give details of the persons who were not permitted to register their same-sex marriage.
With the direction to place these factual aspects before the court, the bench listed the matter for further hearing on October 21.
The petition has contended that despite the Supreme Court decriminalizing consensual homosexual acts, marriages between same-sex couples was still not possible.
– Bhargav BV